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Transcript of PARTICIPATORY LAW AND DEVELOPMENT: REMAPPING · PDF filesensus is unnecessary so long as those...

  • PARTICIPATORY LAW AND DEVELOPMENT: REMAPPING THE LOCUS

    OF AUTHORITY MAGGI CARFIELD*

    Participatory Law and Development: Remapping the Locus of Authority argues that law and development efforts have been ineffective, at least in part, because development agen-cies have failed to engage communities in the process of both setting agendas and instituting programs and policies. This work argues that there must be a fundamental shift in the law and international development paradigm. Scholars and practitioners must abandon the question, how can we change them and instead begin by asking a different ques-tion: in what ways, if any, does a community want to change the rules it operates by and how can external actors assist in that process? Ultimately, this Article advocates for a partici-patory approach to law and development, with a focus on enhancing self-determination.

    INTRODUCTION ......................................................................... 740 I. TRANSPLANTING FORMAL LAW ............................................. 746

    A. First-Wave Law and Development: Targeting the State ......................................................................... 747

    B. Rule of Law Initiatives: Targeting Institutions....... 752 C. Critiques of the Transplant Model .......................... 754 D. Despite Failures, the Legal Transplant Model

    Persists ..................................................................... 757 II. CHANGING CULTURAL NORMS ............................................. 758

    A. The Link between Culture, Norms, Institutions, and the Law ............................................................. 760

    B. Culture Change ........................................................ 764 1. Culture Change Theory ...................................... 764 2. Culture Change Projects .................................... 766

    * J.D., Washington University Law School; A.B., Brown University. Faculty Fel-low and Visiting Lecturer in Law, Washington University Law School (20082010). I wish to thank Susan Appleton, Cheryl Block, Farrell Carfield, Adrienne Davis, John Drobak, Emily Hughes, Carolyn Lesorogol, Marlene Levine, Thomas McInerney, Ruth Meinzen-Dick, Esther Obaikol, Mae Quinn, Laura Rosenbury, Brian Tamanaha, Melissa Waters, and Ken Wood for helpful conversations and feedback.

  • 740 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 82

    C. Culture Change Projects: Legal Transplants Redux ....................................................................... 768 1. Practical Limitations .......................................... 770 2. Normative Concerns ........................................... 772 3. Development is Political ..................................... 774

    III. PARTICIPATORY LAW AND DEVELOPMENT .......................... 775 A. The Case for Self-Determination ............................. 778

    1. Shifting Authority from Outsiders to Insiders ............................................................ 779

    2. Setting the Development Agenda ...................... 780 3. Self-Determination is Development ................... 783

    B. Participatory Law and Development Framework: Remapping the Locus of Authority .......................... 784

    C. Challenges and Critiques of Participatory Approach .................................................................. 787 1. Identifying Decision-Makers .............................. 788 2. Confronting a Lack of Consensus ...................... 789

    CONCLUSION ............................................................................ 790

    INTRODUCTION

    Hence an essential question we must ask is, who makes the rules and for whom and what are their objectives.

    Douglass North1

    Haiti is one of the poorest countries in the world and the poorest country in the Western Hemisphere.

    2 On January 12, 2010, Haiti was struck with the worst earthquake in the region in over 200 years.3

    1. DOUGLASS C. NORTH, UNDERSTANDING THE PROCESS OF ECONOMIC CHANGE 15 (2005) [hereinafter NORTH, ECONOMIC CHANGE].

    Following the earthquake, the world was bombarded with images that showed the death and destruction caused by the natural disaster. The devastation of the earth-

    2. Tracy Kidder, Country Without a Net, N.Y. TIMES, Jan. 13, 2010, at A37, available at http://www.nytimes.com/2010/01/14/opinion/14kidder.html (Hence the current state of affairs: at least 10,000 private organizations perform suppo-sedly humanitarian missions in Haiti, yet it remains one of the worlds poorest countries.); see also CARROL FAUBERT, UNITED NATIONS DEVELOPMENT PROGRAMME, CASE STUDY: HAITI 12 (2006), available at http://www.undp.org /evaluation/documents/thematic/conflict/Haiti.pdf (Haiti is by far the poorest country in the western hemisphere.). 3. See Haiti Earthquake 2010, N.Y. TIMES, July 12, 2010, available at http:// www.nytimes.com/info/haiti-earthquake-2010/.

  • 2011] REMAPPING THE LOCUS OF AUTHORITY 741

    quake was severely compounded by the preexisting poverty and human deprivation in Haiti. Food and clean water were in scarce supply long before the earthquake struck, as were medi-cal supplies, decent shelter, and health and sanitation servic-es.4

    I witnessed this poverty firsthand in 1999 when I spent time volunteering with a non-governmental organization in Port-au-Prince. The organization worked primarily in Cite So-leil, a slum abutting the coast on the outskirts of Port-au-Prince. Cite Soleil is considered by many to be the poorest and most dangerous slum in Haiti.

    5

    One day a couple of volunteers and I were walking with some residents through the settlement and came upon a con-crete structure that was built to be used as a public latrine. The structure looked like it had been abandoned some time ago. I could not understand why this sorely needed resource had fallen into such disrepair. As we talked, the residents ex-plained that the community had never used the latrines. The international development agency that built the latrines never sought any input from the residents in the area about the project. The community was outraged that they had not been invited to participate in the process. In protest, the community as a whole refused to use the latrines. Through further discus-

    The living conditions are deplorable. Like other shantytowns, the 200,000 to 300,000 residents of Cite Soleil are crammed into tiny structures made of tin, cardboard, and concrete, if they are lucky. There is no electricity, running water, or sanitation system. Urine and raw sewage literally run like a stream between the houses. Resi-dents had carefully placed boards, which serve as bridges and walkways, in order to navigate around the sewage, but a single misstep would leave one standing ankle-deep in human waste.

    4. See generally Haiti Aid Effort One Month After Earthquake, BBC NEWS, http://news.bbc.co.uk/2/hi/americas/8509333.stm (last updated Feb. 12, 2010); Haiti: Country Specific Information, U.S. DEPT OF STATE (Nov. 23, 2009), http://travel.state.gov/travel/cis_pa_tw/cis/cis_1134.html (In some [Haitian] cities and towns ordinary services such as water, electricity, police protection and gov-ernment services are either very limited or unavailable.). 5. See Orla Guerin, Haitis Seaside Slum Where the Gun Rules, BBC NEWS, http://news.bbc.co.uk/2/hi/8480015.stm (last updated Jan. 26, 2010, 2:37 AM) (call-ing Cite Soleil Haitis most notorious slum); Tim King, Night Patrol in Cite So-leil, Haiti, SALEM NEWS (Jan. 22, 2010, 9:55 PM), http://www.salem-news.com/articles/january222010/haiti_patrols_tk.php (Cite Soleil is one of the poorest, most troubled neighborhoods in Port-au-Prince.); Patrick Burns, A Day in the Life of Cite Soleil, FLAK MAGAZINE, http://www.flakmag.com/features/ citesoleil.html (last visited Feb. 15, 2011).

  • 742 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 82

    sion the residents explained that the community was not op-posed to latrinesin fact they wanted thembut they were opposed to being completely shut out of the process. In the end, scarce and valuable resources went to waste in a community in desperate need of them.

    Most would agree that the development of sanitation services, in and of itself, is not particularly controversial. On the other hand, projects that seek to develop or reform legal frameworks, herein referred to as law and development projects,6

    This is not an exceptional story. There are numerous ac-counts of development efforts that have gone awry.

    often involve deeply contested issues that implicate cultural, political, and religious values. If communities resent being left out of the process even when the project objective is relatively uncontroversial, it is no surprise that fervent resis-tance, and even outright rejection, may result when projects that seek to change the very rules by which a society operates are undertaken without the intimate engagement of local communities.

    7

    6. This Article uses the phrase law and development broadly to refer to the interdisciplinary field that examines the interplay between the production, mod-ification, implementation, and enforcement of formal and informal laws and de-velopment policy and practice. The phrase law and development is used else-where by some scholars to refer specifically to what this Article calls the first-wave law and development movement. One of the many problems in this field of study is the ambiguous and/or conflicting use of terms. For example, the very term development means vastly different things within the literature. Devel-opment may refer narrowly to economic development or more broadly to the de-velopment of social, political, and cultural rights. This Article adopts Amartya Sens expansive